Advisory Opinion

• Author: Jeffrey Lehman, Shirelle Phelps

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An opinion by a court as to the legality of proposed legislation or conduct, given in response to a request by the government, legislature, or some other interested party.

Advisory opinions are issued in the absence of a case or controversy. Although they are not binding and carry no precedential value, they are sometimes offered as persuasive evidence in cases where no precedent exists.

Federal courts will not issue advisory opinions. This rule, based on the constitutional guarantee of SEPARATION OF POWERS, was established in 1793 when JOHN JAY, the first chief justice of the Supreme Court, refused to provide legal advice in response to requests by President GEORGE WASHINGTON and Treasury Secretary ALEXANDER HAMILTON. Washington asked the Court for advice relating to his Neutrality Proclamation in regard to the French Revolution. Hamilton asked Jay for an opinion on the constitutionality of a resolution passed by the Virginia House of Representatives. In both instances, the Court diplomatically but firmly refused to supply an opinion.

The Supreme Court has steadfastly resisted subsequent efforts to elicit advisory opinions, even when these efforts appear under the guise of an actual lawsuit. Thus, in Muskrat v. United States, 219 U.S. 346, 31 S. Ct. 250, 55 L. Ed. 246 (1911), the Court struck down an act of Congress that authorized the plaintiffs to sue the United States to determine the validity of certain laws. The Court found the lawsuits authorized by the act to be thinly veiled attempts to obtain advisory opinions, since the constitutional requirements of justiciability and an actual case or controversy were not satisfied. Justice WILLIAM R. DAY, writing for the Court, predicted that if the justices rendered a judgment in the case,

the result will be that this court, instead of keeping within the limits of judicial power and deciding cases or controversies arising between opposing parties, as the Constitution intended it should, will be required to

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give opinions in the nature of advice concerning legislative action, a function never conferred upon it by the Constitution.

Echoing the convictions expressed in Muskrat, Supreme Court Justice FELIX FRANKFURTER, writing on advisory opinions, stated, "Every tendency to deal with constitutional questions abstractly, to formulate them in terms of barren legal questions, leads to ? sterile conclusions unrelated to...